The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1887-06-17
is LIEUTENANT GOVERNOR
Attorney-General Kitchener Answers
Question as to Robertson's Election.
The Law and Facts Plainly Argued and
Stated-COlonel Robertson Is Member
Of the State Board of Equalization.

| Griffin:
| Hon. Charles F. Griffin. Secretary of State:
Sir-I am in receipt of a communication from
you, in which you state that ''Mahlon D. Man
| son. in the summer of 1886. and while he wa
Lieutenant governor of the State was appointed
! to and accepted the Office of internal revenu,
| collector under the United States. At the gen
| erai election. held in November, 1886, Robert S
| Robertson received greater number of votes
than any other person voted for at said election
for the Office of Lieutenant governor to fill the
vacancy caused by the taking of the other Office
by General Manson. Since the election there
has been considerable debate concerning the
power of the people to fill the vacancy at that
election, and as Colonel Robertson will probably
claim the right to act a memb Der of the State
Board of Equalization at its coming session
desire to have your opinion upon the subject
In response to this request have to say that
the State Board of Equalization consists OF the
Governor. Lieutenant-governor, Auditor. Score
tary and Treasurer of State and Attorney gen
eral. lSectior 6402 Il. s., 1881.
If Colonel Robertson legally elected
Lieutenant-governor at the general election in
November, 1856. then he is entitled to act as a
member OF the Board of Equalization.
When Lieutenant governor Manson accepted
office under the United States. in July. 1886. the
Office of Lieutenant-gover became vacant.
because an empty office is vacant Office lStock-
ing vs. State. Ind, 800 Did the people of the
State have the power to fill this vacancy by
election November, 1867 The people alone
is an essential attribute OF supreme power.
1t is impossible to conceive the existence
of supreme power in a people without embody-
ing in the same conception the right to choose
their own rulers II Montesquieus Spirit Of
Laws, 10; Jameson on Constitutional Conven-
tons, 49, This power resides in the people as
inherent right. They may delegate it, but
until it is delegated by them they alone can ex-
ercise it. What the people do not delegate re-
mains in them as the original source of power.
Officers are merely the agents of the people, and
they exercise such power only as may have been
delegated to them; their powers are derivativs,
while the powers of the people are original and
the people; they delegate it to the officers
agents of the people Lane Co VS.. Oregon.
Wall. U. s., Il: Walcott vs. Wigton. Ind, A;
Cooley on Constitutional Limitations, side page
81. Daniel Webster said: Written constitu-
tions sanctify and confirm great principles, but
the latter were in existence prior to
the former" III Webster's works, 1922: In
Hamilton St Louis, Is Mo-, Is, it is
said What is a constitution, and what are its
objects2 1t is easier to tell whatit is not than
what it is 1t is not the beginning OF com
munity, nor the origin of private rights; it is not
the fountain of law. nor the incipient State gov
ernment 1t is not the cause, but consequence of
personal freedom; it grants no rights to the poo
pie, but is the creature of their power, the in
strument of their convenience. It pre-
supposes an organized society. law, order, prop
erty, personal freedom. a love of political hb-
erty and enough of cultivated intelligence to
know how to guard it against the Entertainments
of tyranny A written constitution is in every
the OF
there never a written republican consttu-
ton which delegated to functionaries all
the latent powers which lie dormant in every
nation, aud are boundless in extent and incapa-
BILE of definition" 1t Is not to be presumed that
the people have parted with their right to choose
their own rulers the presumption is to the con-
trarv. Nothing less than an express constitu-
tional provision granting this sovereign power to
agents officers take it from the people, for
it is not to be done by inference or impli-
cation. mo intendment inference is
presumed against the sovereign"
Johns VS. State. 3 Oregon, 533) One of the
great objects of constitutional government is to
guarantee to the people the choice of their rulers,
and that choice is to be made through the instru-
mentality of elections. In Constitutions like
5urs the controlling principle is that elective
regular elections occur Estate vs. Long 81 Ind,
251: People VS.. Bull. 46 N Y, 81; State vs.
Johns. Ore. 533; Speed vs.. Crawford, Met
calf Ky I, POT; Parrnater VS.. State, 102 Ind, co.,
1t needs no constitutional provision to put the
power 20 elect in the people, but it requires a
plain and direct one to take it from them.
The Constitution is the creature, not the crea-
tor of sovereignty. 1t grants no power to the
people, for they already have it as the source OF
all power. This principle is recognized in the
first sentence of our Constitution, where it is
said "all power is inherent IN the people" But
such recognition of this ''selfevldent truth
not needed for it is firmly imbedded in the
foundations of all free governments, and with
out it free government would be impossible.
If the people of this State did not part with
any of this power in the adoption of the Consti-
tuition it still resides in them, for the Constitu-
tion is not the depository of the power of the
people, but it is the depository of the limitations
upon their power Such instruments measure
the power of the rulers, but they do not measure
the power of the governed Cooley or Corsti-
tutional Limitations 40 Unless the people, in
their Constitution, expressly deprived them
selves of the right to NIL the vacancy In the ONCE
of Lieutenant-governor that power still remains
in them to be exercised at every constitutional
opportunity. Such an opportunity occurred In
November, 1886 because by the Constitution and
the statutes. the election held in that month was
a general election. IA general election is one at
which the people may fill by election every
elective Office in the State not distinctly other
wise provided for by the Constitution" Estate
Johns. Oregon. 533.) careful examina-
ton of the Constitution from preamble to con-
cusion discloses the fact that there is not ono
word in it which denies to the people the right
to fill the Office of Lieutenant governor at gen.
eral election; on the contrary, py the clearest
implication, the Constitution confirms that
right Section of Article declares that ''the
Lieutenant governor shall be elected at tho
times and places of choosing members of the
General Assembly, which is done at every gen.
eral election. This is the only Limitation upon
the right to elect the officers named. Section Is
of the same article is as follows: when during
a recess of the General Assembly, or whom at
any time a vaucancy shall have occurred in any
other State office, the Governor shall fill such
vacancy by appointments, which shall
s BEEN elected and qualified" That
Lieutenant governor is State officer
will not be denied Neither will the power Of
the Governor in view of this section Of the Con-
stitution to fill the vacancy py appointment be
questioned. How long would the appointee hold
object This section says until "a successor shall
have been elected and qualified"
The use of this language is clear. explicit and
recognition of the right of the peo-
pie to fill the vacancy by election, for it is
sonable to presume that the people weighed care
fully every word they put in the funds mental
law. (Wolcott, 6; Wiehton, Ind, A and cases
cited)
am not unmindful of the fact that 1t has
been contended that Section of Article 5, by
reason of its provision that the Lieutepant-gov-
ernor shall hold his Office during four ears de-
prves the people of the right to elect oftener than
once in four years. and for a less term than four
years This section must be considered in con-
nection with Section of the same article, which
provides that the official term of Governor and
Lii eutenant-govsr shall commence the Sec
ond Monday in January. 1853, and the same day
every fourth year thereafter" If coustrue
the two sections together, and they must
be SO construed. for they relate to
the same subjecs-matter, it is clear
that the term of one elected to fill a vacancy in